A Trust Betrayed

by Mike Magner

  A long road lay ahead for victims taking the path of litigation. In June 2009, the US Supreme Court rejected an appeal by a former Marine whose lawsuit had been dismissed in federal district court. Donal McLean Snyder Jr. had argued that his son, who had been born at the base in 1971, had a congenital heart defect because his pregnant wife had drunk the base’s tainted water. The boy had undergone two open-heart surgeries because of the defect. The district court had ruled that the Marine Corps was not liable, because there were no regulations for the chemicals found in Lejeune’s drinking water until the late 1970s.3

  Then, in July 2009, a lawsuit was filed in federal court in North Carolina alleging that the government knowingly exposed thousands of Marines and their families as well as civilian employees at Camp Lejeune to highly contaminated drinking water. The suit was filed by a law firm that Ensminger had contacted three years earlier, Anderson Pangia & Associates, and a Pennsylvania firm, Smorto, Persio, Webb & McGill. Named as the lead plaintiff was an Iowa woman, Laura Jones, who had been diagnosed with non-Hodgkin’s lymphoma twenty years after she and her Marine husband had lived at Lejeune. He had been stationed there from 1980 to 1983.

  “The lawsuit alleges that the United States Government, through agents within the Department of Defense, knowingly exposed hundreds of thousands of Marines, sailors, their family members, and civilian employees to highly contaminated drinking water on the base at Camp Lejeune, while at the same time actively disseminating disinformation to those exposed in an effort to minimize the significance of the exposure,” the two law firms said in a joint news release on July 1, 2009. Jones, a former nurse, had to quit working in her midforties because of all her medical problems subsequent to the lymphoma, said the fourteen-page complaint that was filed along with supporting documents. “She continues to suffer, among other problems, resulting fibromyalgia requiring high dosages of narcotics to address the pain, an adrenaline insufficiency, immune system difficulties requiring her to take high dosages of immunoglobulin and other medications to address these ongoing problems and suffers confusion and loss of memory as a result of chemotherapy,” the lawsuit said.4

  The government moved for dismissal of the lawsuit on the grounds that the statute of limitations required damage claims against a federal agency to be filed within two years of a health problem occurring. The government also argued that the chemicals found in the base water had not been regulated at the time of Laura Jones’s exposure. But in February 2010, US District Judge Terrence Boyle in North Carolina denied the request for dismissal. The judge’s ruling was damning. “To summarily bar such claims from entering the courthouse would be a profound miscarriage of justice,” Boyle declared. “To apply the statute of repose in this case would bar all potential claims from the over 500,000 Marines and their families affected. Indeed, it would bar the overwhelming majority of claims involving any cancer,” he said.5

  “The Government is correct to note that blameless ignorance of available facts is not sufficient to delay the onset of the limitations period,” the judge wrote in his decision. “But the Department of the Navy’s unwillingness to release information regarding contamination at Camp Lejeune or to provide notice to former residents remains relevant in that such conduct limited the information available to potential claimants.”

  Boyle also blew away the Navy’s contention that because toxic chemicals found at Lejeune in the 1980s were not yet regulated by the EPA, the government could not be accused of negligence for failing to remove the tainted water supply. “The December 1972 Bureau of Medicine and Surgery (BUMED) Instructions for Camp Lejeune [that] mandate regular testing of the water supply state that ‘Drinking water shall not contain impurities in concentrations which may be hazardous to the health of the consumers,’ and specifically limit acceptable levels of chlorinated hydrocarbons,” Boyle wrote:

  Reports on tests of the water supply at Camp Lejeune in October and December of 1980 and March of 1981 indicate contamination by halogenated hydrocarbons, chlorinated hydrocarbons, and organics. The Government argues that TCE and PCE were not the types of hydrocarbons regulated in the early 1980s and that no standard method existed for testing for concentrations of these specific chlorinated hydrocarbons. But a 1982 report to the Commanding General of Camp Lejeune specifically describes the presence of TCE and PCE in amounts exceeding the BUMED Instructions acceptable levels for all chlorinated hydrocarbons. Moreover, DCE, TCE, PCE, vinyl chloride, and benzene were regulated as “toxic pollutants” under the Clean Water Act beginning in 1978. And although the EPA did not regulate these chemicals under the Safe Drinking Water Act until January 1989 (for benzene, TCE, and vinyl chloride), and July 1992 (for DCE and PCE), the EPA estimated a suggested no adverse response level for TCE in November of 1979.

  “In sum,” the judge wrote, “during at least part of Plaintiff’s residence at Camp Lejeune, the Department of the Navy had notice of the presence and toxicity of the chemicals at issue in the water supply of Camp Lejeune. And specific instructions were in place regarding the types of chemicals that Plaintiff alleges were responsible for her injuries.”

  Laura Jones’s case against the government had survived two dismissal motions and seemed to be headed toward argument in a federal courtroom. But while waiting for the suit to proceed, Jones—unable to work because of her cancer—went broke from medical bills and other expenses. She made a critical mistake when filing for bankruptcy, though: Jones failed to disclose to the bankruptcy court that she had a $10 million claim pending against the government in US district court. She also failed to tell the district court about her bankruptcy, even though she was required in the discovery process to disclose all “legal proceedings to which she was a party.” When government attorneys learned about her bankruptcy through her medical records, Jones admitted under oath that she had not been forthcoming; she said she had not told the bankruptcy court about her $10 million lawsuit because her attorney had said her chances of winning were slim. Jones’s case in district court was dismissed, and the ruling was upheld by a three-judge panel from the US Court of Appeals for the Eleventh Circuit. “Most litigation is somewhat speculative,” the appellate court said in rejecting Jones’s argument that she didn’t disclose her district court suit to the bankruptcy court because she did not think she would win. “Jones’s case may be difficult to prove, but if she did not believe she had at least some chance at recovering $10 million, she would not be actively prosecuting it.”6

  The law firm that was handling Jones’s lawsuit over the Camp Lejeune contamination, Anderson Pangia & Associates, was dealt a huge setback, but it had at least thirty or forty similar claims ready to be pursued against the Navy, said Michael Pangia, an attorney in the firm’s Washington, DC, office. The firm filed a new case under the Federal Tort Claims Act on behalf of Sharon Kay Boling, an Ohio woman who had lived at Lejeune with her Marine husband for eight months in 1977 and 1978 and was later diagnosed with leukemia. Her suit, still pending in late 2013, seeks damages for pain and suffering, “loss of mobility and enjoyment of life,” lost income, and medical expenses related to her leukemia and to other problems resulting from her exposure to toxic chemicals at Lejeune, including nerve damage, a weakened immune system, anxiety, and depression.7

  Other cases against the Marine Corps in federal court began to pile up. An Alabama couple, John and Connie Edwards, filed suit in federal court in 2010 charging that their exposure to toxic water at Lejeune had caused brain cancer to develop in two of their children, including a girl who died in 2000 at the age of fourteen. A former Marine, Joel Shriberg, filed a federal complaint in 2011 alleging that the water he drank at the base from 1957 to 1959 had led to a diagnosis of breast cancer in 2004; Shriberg was asking for $16.2 million for medical expenses, “past and future pain and suffering, loss of enjoyment of life, and diminished life expectancy.” Also in 2011, a woman who had worked in food service on the base for twenty-two years, Linda Jones of Jacksonville, North Carolina, argued in another federal
case that she had developed an aggressive form of non-Hodgkin’s lymphoma in 2007 at the age of sixty-two.8

  With so many similar cases being filed, the federal courts consolidated the discovery process for Camp Lejeune lawsuits into “multidistrict litigation” in the Atlanta court of US District Judge J. Owen Forrester. The legal maneuvering began almost immediately, including a motion for dismissal filed by the government citing the Feres Doctrine. One attorney representing plaintiffs in the consolidated case called the government’s effort a disgrace. “The Feres Doctrine was never intended to protect the US Government from lawsuits that have nothing to do with military actions,” said William Dubanevich, an environmental attorney with the New York firm of Parker Waichman. “It most certainly was not intended to protect it from basic duties owed by every US municipality to provide all citizens and residents of the nation with life-sustaining services, including clean water. The US Government should be disgraced at their attempt to hide from their alleged wrongdoings, knowingly exposing service men and women, their spouses and children and civilians to chemical-laden water, by invoking the Feres Doctrine in this case.”9

  It would likely be years before all the preliminary motions were dealt with in the consolidated cases, especially if individual rulings were appealed, but attorneys for the plaintiffs could see some benefit in waiting while the ATSDR completed its studies of the effects of Camp Lejeune’s contamination. Chances seemed good in 2013 that at least some of the findings from several ongoing studies would produce evidence that would be helpful in damage claims against the government.

  In 2013, the ATSDR was two years into the largest health survey ever conducted by the agency—an effort to reach more than 300,000 people who had lived or worked at either Camp Lejeune or Marine Base Camp Pendleton in California prior to 1986. The goal was to compile and compare health data on similar populations that had one key difference: the people who lived at Lejeune had been exposed to toxic drinking water, and the ones at Pendleton had not. With the modeling studies estimating exposure levels at various times and places on Camp Lejeune, the ATSDR would have a pretty good idea how much tainted water past residents of the base had consumed, depending on where they had lived and when they had lived there. “We’ll be able to give each person at Camp Lejeune a different amount of exposure based on what they drank, how much they drank,” the agency’s director, Christopher Portier, told a reporter as the massive survey began in June 2011. “And then we’ll break them into different groups as a function of their level of exposure,” to see if there are connections between those exposures and health problems. The survey would take at least three years to complete, until 2014 or later, Portier said.10

  The health agency’s announcement was followed in the fall of 2011 by a long-awaited report from the Environmental Protection Agency—a full decade in the making—finally assessing the risks of human exposure to trichloroethylene, the most ubiquitous contaminant in the nation’s environment. In a 1,200-page report, the agency said extensive research showed that TCE is far more toxic than previously believed, “a potential human health hazard for noncancer toxicity to the central nervous system, kidney, liver, immune system, male reproductive system, and the developing fetus” and a compound that is “carcinogenic in humans by all routes of exposure.”11

  It was a far stronger warning on TCE exposure than the EPA had issued in its draft assessment in 2001, a report that had triggered protests from the Defense Department that risks posed by the chemical were being overstated. The Pentagon had mostly been concerned that its cleanup costs at contaminated sites, including Camp Lejeune, would skyrocket if the 2001 EPA assessment was adopted as scientific fact, and now it was faced with exactly that situation. The stage was set for the EPA to tighten its national exposure limits for the chemical, currently set at 5 parts per billion in water and 1 microgram per cubic meter in air.

  “This risk assessment is a big deal because it will strengthen protections for people who live and work above TCE plumes—and there are a lot of them—and could force serious rethinking about the extent of cleanup efforts,” Lenny Siegel, executive director of the Center for Public Environmental Oversight in Mountain View, California, told the Los Angeles Times. Siegel’s group, which closely monitors contaminated industrial and military sites around the country, had just posted an open letter signed by environmental activists demanding that the EPA release its assessment of TCE immediately. Two days later it was published. Jennifer Sass, a senior scientist at the Natural Resources Defense Council (NRDC), told the Times that the assessment “launches new arguments about what the safety standards should be. In the meantime, people impacted by this pollution can now link their disease to it in litigation with more confidence because the science is no longer in dispute. TCE causes cancer.”12

  After twenty years of investigation, the ATSDR finally had some momentum behind its studies at Camp Lejeune, though it still had to weather more storms stirred up by the Department of Defense. The Marine Corps continued to question publicly whether the water contamination at the base had actually harmed people. In a pamphlet on the base’s environmental issues that was posted on the DOD website and distributed to members of Congress in 2010—and thus before the fall 2011 release of the EPA’s report—it had been flatly stated that past contamination had never been established as a health threat. “At this time, scientific studies have not linked exposure to the impacted drinking water at Camp Lejeune to any illnesses,” the brochure said, citing the 2009 report by the National Research Council, since discredited, that said it was impossible to directly connect illnesses to the base contamination.

  There were complaints about the brochure even before the EPA’s fall 2011 report appeared. “It suggests there is no problem,” the ATSDR’s Thomas Sinks said in a January 2011 letter to the Marine Corps protesting its continued use of the brochure. “It understates the potential hazards from the contaminated drinking water and may discourage individuals from participating in planned research studies.” It took six more months of pressure, from both federal health officials and key members of Congress, before the Marine Corps pulled the document off its website in July 2011. But a Marine spokeswoman, Captain Kendra Hardesty, insisted the move was only temporary. “As soon as it is vetted and approved, it will be put back up,” she said. “The secretary of the Navy has seen it, and the commandant will see it soon.”13

  An even bigger dustup between the ATSDR and the Marine Corps took place in early 2012, at the same time that Congress was considering the legislation to provide health care for victims of Lejeune’s pollution. Major General J. A. Kessler sent a letter to the ATSDR on January 5, 2012, requesting that information about active water wells at the base be redacted from upcoming studies as a security precaution. “The Marine Corps understands the need to share information with the scientific community,” wrote Kessler, assistant deputy commandant for installations and logistics. “Prudence requires, however, that information sharing be within the rubric of responsible force protection.” The request was met with derision from Jerry Ensminger, who called it another attempt to suppress damning information. “This is exactly what happens when you have one federal agency investigating another,” Ensminger told the Huffington Post, which published an online story about the Marine Corps request.14

  The cries of foul play grew louder a month later, when the ATSDR released another chapter of its continuing water-modeling studies. This time, detailed information about active wells at the base was redacted, as the Marines had requested. “As you know, we provide ATSDR with access to the information they need to conduct these studies,” Captain Hardesty told the Jacksonville Daily News in North Carolina. “The request to redact was only with regards to public release. It is important for the Marine Corps and ATSDR to cooperate, not only in the search for science-based answers regarding the Camp Lejeune Historic Drinking Water issue, but also in the safekeeping of critical infrastructure information.” ATSDR officials defended the redactions, saying the
failure to disclose specific data about well locations did not compromise the integrity of the water-modeling studies. Thomas Frieden, director of the CDC, which has responsibility for the ATSDR, wrote members of Congress to assure them that the new report included only “limited redactions,” which had been allowed “because the longitude and latitude coordinates of active drinking water infrastructure was scientifically unnecessary for the purpose of the document.”15

  As soon as Frieden’s letter to members of Congress became public, the chief hydrologist for the water-modeling study, contract engineer Robert Faye of the Eastern Research Group, wrote a strong letter of protest to ATSDR Director Christopher Portier. Faye said Frieden’s statement that precise well locations were not important to the study was “patently false on its face and, from a scientific point of view, borders on the inane and silly.” In fact, the only way a scientific study has integrity is if all information is public so that peer reviewers can replicate the results in independent laboratories, Faye said. “I want to state for the record herein that, as a matter of professional ethics and common sense, I did and do totally disagree with ATSDR’s policy decision to redact data,” Faye told Portier.16

  Faye said in an interview later that Frieden’s letter to Congress implied that he and the ATSDR engineer in charge of the modeling studies, Morris Maslia, were willing to compromise on scientific integrity, which would be seen by their peers as unethical behavior. Not only did he want to clear his own reputation, but he felt he needed to defend Maslia, who was prohibited by the ATSDR from commenting publicly on the ongoing studies. “I have absolute personal knowledge of this,” Faye said in the interview in June 2013. “Morris Maslia is one of the most ethical, upstanding individuals I ever worked with. He fought tooth and nail to maintain the integrity of the program.”